Court's liberal lion steps down

Justice John Paul Stevens, who opened his long career on the Supreme Court pegged as a moderate conservative, now closes it as the court’s liberal lion.

He is a champion of abortion rights, of separation between church and state and of limits on executive power.

Story Continued Below

The Stevens opinion that most infuriated conservatives was probably the Kelo case in 2005, when the court allowed a taking of private property under eminent domain for economic development, which deeply offended their view of the constitutional protections for private property.

And he dissented just a few months ago with the court, in the Citizens United case, struck down federal election laws banning corporate expenditures in campaigns.

Yet he has always been considered independent-minded and non-ideological.

His journey to this point was no straight line. It zigged and zagged unpredictably at times, with him being briefly labeled as a quirky maverick, before he settled into his role as the senior justice of the liberal bloc and therefore the justice with the uncommon power, often, of deciding who might write what.

And Stevens evolution cannot be understood without understanding the evolution of the court. Between the time he was appointed and the time he retired the court turned over completely. Indeed, he is the lone survivor of the remnants of a court—including Justices William Brennan and Thurgood Marshall—that made him seem like a middle-of-the-road appointment in 1975. Justice William H. Rehnquist, in those days, was a often a lone dissenter.

That's why Stevens has long contended that he did not change as much as the court changed.

He was the first justice of the post-Watergate era, with collapsing trust in public institutions and increasing polarization among the nation’s elites. He was the first justice appointed after the court’s 1973 ruling in Roe v. Wade. And when he arrived, the issues that garnered the most public attention concerned church and state, busing and the rights of criminal defendants.

“He was at that inflection point right after Roe vs. Wade but before the big judicial battles of the 1980s,” said Cornell Law Professor Eduardo M. Peñalver, a former Stevens clerk. “When he was put on the Supreme Court, it wasn’t the center of political attention that it is now, or it was just starting to become that way. That’s changed the nature of judicial decision making.”

Harvard University constitutional law professor Richard Fallon said that Stevens’ career can be studied in “at least two parts.” He was independent-mindedly, iconoclastic and idiosyncratic. Then he noticeably changed after the retirements of Brennan and Marshall.

“There was a voice on the Supreme Court, and the void was an absence of a powerful, articulate, liberal voice,” Fallon said. “It was as if Stevens filled that void, went to the void. And for the second part of his career he played the role as ‘liberal champion’ of individual rights.”

One of his most biting dissents ever came in Bush vs. Gore when he found himself writing for the losing side in the 5-4 decision that ended the Florida recount and handed George W. Bush the presidency.

“It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law,” Stevens wrote in December 2000.